Equality Act 2010: Questions and Answers
Equality Act 2010
Paul Whitfield, our top employment law solicitor looks at important changes resulting from the Equality Act 2010
I was told that it is now illegal to ask job applicants about their health during recruitment. Is that right?
In most cases yes. The Equality Act 2010 came into force in October and it limits what an employer can ask applicants about their health. Only in limited cases is it now lawful to ask applicants about their health before they are offered employment. Questions may only be asked if it is necessary to find out if the applicant can carry out basic functions of the role. For example, it would be acceptable to ask applicants for a manual handling role if their health would affect their ability to carry out that aspect of the role. Employers who ask applicants to complete detailed health questionnaires should stop doing so now.
Does the Equality Act 2010 make employers publish information about the rates of pay for men and women?
It was intended that employers with 250 or more staff would be obliged to do this from 2013 but the Collation Government have said that they oppose this legalisation and it is unlikely to be brought into force. If it was to be brought into force it would be likely to be restricted to only employers who have lost equal pay claims and not all employers.
Can we still make our employees’ keep their pay confidential from each other?
Under the Equality Act, pay secrecy clauses will be unenforceable if an employee discusses their pay to see if they are being discriminated against. A woman asking a male colleague in the same role what he earns would be protected but two male colleagues will not be and their pay secrecy clause would remain enforceable. There is nothing in the new laws that would force employees to disclose their pay details if asked by a colleague.
Many employers will carry on including pay secrecy clauses in their contracts but will not enforce them where that would be inappropriate.
Does the Equality Act 2010 create lots of new types of discrimination claims?
Despite some of the media coverage, no. The law on discrimination was very complex and messy as a result of the law for each form of discrimination being different. The Act tries to make the law for each type similar and clarifies the scope of the law to cover ‘protected characteristics’ on which it is unlawful to discriminate these being age, disability, race, religion, gender, sexual orientation, marriage and maternity. None of which are new.